To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial material for legal historical research. Nevertheless, a few studies have blended legal history and late antique Christianity, and an analysis of these studies shows they are based on a “centralist,” or “formalist–positivist,” conceptualization of law.
In this paper I review the scholarship of legal traditions in the eastern Roman Empire— namely, Roman law and Greek legal traditions, the halakha in rabbinic literature, and the halakhic traditions in Qumranic literature and in the New Testament—and contextualize it within developments in legal theory and legal sociology and anthropology (that is, the rise of legal pluralism). This review shows that developments in legal theory, in legal sociology and anthropology, and in legal history of the late antique world are producing new paradigms and models in the study of late antique legal history. These new models, together with new methods in reading early Christian non-legal texts of the eastern Roman Empire, can be utilized in the study of early Christianity, thereby opening gateways to the study of its legal traditions and revealing independent legal traditions that have remained hidden to date.
To Prof. Aharon Shemesh,
Who opened the gates of Halakha, Torah and research for me
In the first half of the first millennium, Christianity had only marginally developed an internal legal tradition and had barely elaborated an internal legal system in its own right. Christians, so it is assumed, followed Paul's call to abolish the biblical Commandments, thereby making Christianity inherently antinomic. As a result, early Christian sources principally draw the scholarly attention of theologians, scholars of biblical commentary, and historians, but not legal historians, since it is generally held that these sources simply do not offer substantial enough material for them.1 Thus, the current scholarly world does not devote the same attention and effort to the study of late antique Christian law and legal traditions as to other topics in late antique Christianity. In fact, a brief review of some of the recent introductory studies to Christian law illustrates this phenomenon quite clearly. These studies usually open with a lengthy discussion on law in the New Testament and continue with a description of early Canon law, while only briefly reviewing late antique Christian legal traditions in the period after the New Testament, up to the emergence of medieval Canon law.2 Displaying this significant time gap in the description of the evolution of Christian law, they point to the marginality of law during the formative stages of Christianity, the time of the early “Church Fathers.”
This picture raises questions regarding the concept of law held by scholars of early Christianity. How is law defined and conceptualized by these scholars and how does this conceptualization shape both the definition of law in modern Western culture and research, and in the study of the legal traditions of Late Antiquity? Can a different conceptualization of law, based on different cultural assumptions, enlighten and enrich research of late antique law?
While late antique Christian law is barely studied as an internal legal system, there are studies that do tie the two research fields of legal history and late antique Christianity together through various focal points. These studies can be divided into three main categories: the sparse Christian literature categorized as “legal,” the development of Christian hierarchy and institutions, and the influence of Christianity on Roman law. The Christians of the first centuries C.E. left only a small number of “legal” texts—that is, texts addressing the regulation of the behavior and practice of the Christian community and clergy, or rulings on specific issues. These texts include the so-called “Church Orders,” Councils, and Bishops’ Letters.3 These so-called “Church Orders,” the most famous of which are the Didache,4 the Didascalia,5 and the Apostolic Constitutions,6 originated mainly in the Eastern Roman Empire. They are often studied in relation to halakhic traditions and Jewish-Christian literature. The Councils, documented from the second century onward, are discussed with emphasis on their textual developments,7 their importance for later canonical collections,8 and the evolution of the institutional and organizational aspects of the early Church.9 Likewise, Bishops’ Letters, the most famous of which are the three canonical letters of Basil of Caesarea, and early Christian writers’ direct comments and discussions regarding the concept of law, are also studied as part of the scholarly discourse on the development of Christian antinomism and legal theory, mainly following the ideas of natural law.10
Thus, Christianity, as portrayed in these studies, did not produce a systematized and unified set of laws, and referred to natural law—which could be seen as universal—only in theoretical discussions. This picture has led scholars to claim that early Christian references to law and practice cannot be described as part of an independent internal Christian legal system, but should rather be viewed in the context of local customs and norms.11
While it is hard to assert that the “Church Orders” portray a legal system per se, it is easier to argue that the early Christian institutions do. The development of the institutional and hierarchical features of Christianity—especially the authority and power of the Church—has attracted significant scholarly attention. Research in this field begins with studies of the New Testament, especially the Pastoral Epistles, describing the earliest stages of the organizational and institutional dimensions of the newly established Church and the seeds of Canon law.12 Research continues with studies on the formation of Christian authority,13 the judicial role of the bishops and their courts,14 the ability of the bishops to enforce their rulings, the penal system,15 and the relationship between the bishops’ authority and that of the Roman judges and legislators.16
Yet another topic in the study of law in relation to late antique Christianity is that of the influence of Christian thought and practice on post-classical Roman law. Scholars such as Edoardo Volterra,17 Biondo Biondi,18 Jean Gaudemet19 and, later, Judith Evans-Grubbs20 and others have discussed the question of Christian (or oriental) influence, or the lack thereof, on Roman law.21 They have focused mainly on issues in which Christian legal stances differed from those of Roman law, such as the prohibition on divorce and the status of betrothal, and on changes that Constantine introduced to Roman law—whether in support of rising Christianity or for other reasons. They have also tended to concentrate on the Christian influence on the early Byzantine codes (namely, the Theodosian Code and the Corpus iuris civilis), which are compiled from classical Roman law, yet were edited after the Christianization of the Empire.22
Similarly, Roman law formed part of the legal literature composed by Christians, such as the Syro-Roman Lawbook23 in the East and the Collatio legum mosaicarum et romanarum, compiled in the west by either Christians or Jews.24 These two compilations raised questions regarding the amount of Christian or oriental legal thought and traditions embedded in Roman legal sources. The relationships between Roman law and Christian legal traditions were also the main topic of discussion in the study of medieval Canon law in the West, where Roman law constituted the main contributor.25
As Caroline Humfress argues, the concept of law underlying most studies in late antique legal history can be tagged as centralist.26 According to this definition, law is usually systematized and unified and, most importantly, related exclusively to central authority and enforcement, to courts, and to the execution of the law. In the same vein, David Wagschal, in his study of Christian Byzantine legal literature, pointed to the fact that modern legal historians and lawyers conceive law as “an independent and abstract project or field of learned endeavor concerned with the application of a formal system of mostly written rule.” It is, he observes, consistent, systematic, autonomous, and developed by a professional class of legal experts. Wagschal therefore uses the tag “formalist-positivist” to describe this concept and claims that, while legal theory and legal anthropology have long removed themselves from this definition, it remains dominant in modern western culture and, thereby, in modern western legal history.27
These two rigid definitions of law—centralism and formalism-positivism—describe law as perceived by western legal historians of the pre-modern world. As such, they are cultural claims rather than fully detailed theoretical claims. Nevertheless, they not only explain the current state of late antique and Byzantine legal history, but also supply a reason for the lack of study of Christian legal traditions as a legal system in its own right. Based on these paradigms there is no reason to search for an internal tradition of Christian law, as the limited written Christian sources describe mainly non-systematized, non-unified and localized legal traditions. Furthermore, in the first centuries of the Common Era, Christians had little authoritative power and therefore could not initiate their own law. According to the centralist paradigm, only the law of the Empire (in this case, Roman law), and even the Christian influence thereon, should form part of the study of late antique law.
Are these unnuanced, culture-based conceptualizations of law inevitable, or are there alternative ways of conceptualizing law that would be better suited to the study of the late antique world? Furthermore, do these concepts of law constitute a sufficient enough model? Or might they create blind spots in the study of late antique Christianity? As David Ibbetson claimed, regarding studies of medieval legal history, legal historians tend to study the history of law assuming that law changes through time, while they regard the mere definition of law as stable. They presuppose that there are legal traditions that develop in various ways without inquiring into the developments evolving within the frameworks of these legal traditions that define them as “law.”28
Disregarding such changes creates lacunae in our understanding, as scholars tend to perceive law according to their own definition—which usually correlates with the modern western definitions of law—even though this does not necessarily comply with the historical definition of law. Highlighting the backdrop of centralism in late antique legal history therefore raises the question of whether late antique law can safely be assumed to be unified, systematized, institutionalized, and studied only from authoritative legal texts, and queries the impact of (or even the damage caused by) this assumption.
In the present paper, the terms “centralism” and “formalism-positivism” refer to the common western cultural definitions of law and to their use by legal historians rather than to fully-detailed theoretical claims and their use by legal theorists. I ask how these terms explain the overall direction of research on late antique law, including trends in the study of Roman law, Greek legal traditions, and sectarian and rabbinic halakha, and their underlying assumptions. I will contextualize these assumptions within broader developments in legal anthropology and legal theory. This approach will serve as a basis for my conclusions and suggestions for new directions in the study of late antique Christian legal traditions, especially in the study of the Eastern Roman Empire.
ROMAN LAW AND GREEK LEGAL TRADITIONS
Late antique Christianity is not alone in having its legal tradition studied from a centralist, or formalist-positivist, point of view. In fact, research of most legal traditions of the Greco-Roman world was based on similar conventions. Since the nineteenth century, the study of Roman law, its history, and its context has hovered between dogmatic and historical methods.29 While scholars using historical methods have sought to position Roman law in a wider context, taking into account intellectual and historical changes, they have also used dogmatic thinking. Roman law was portrayed as systematic, centralized, unified, and related to enforcement, and its study focused mainly on civil law, disregarding public and religious law.30 This approach can be seen specifically in the works of Max Kaser,31 Leopold Wenger,32 Franz Wieacker,33 and, later, Reinhard Zimmermann,34 to name but a few leading legal historians.
In recent years, however, this paradigm has been questioned, and other, less rigid, forms of law, such as practice and custom, are being considered in the study of the Roman legal system.35 Within this context, Alan Watson maintains the centralist description of Roman law. He, however, does not arrive at this conclusion via a purely dogmatic approach. Keeping in mind the relationship between law and society, Watson claims that Roman law represents pure “law,” which is not influenced by social practices or social pressure, because it stems from the culture of jurists rather than that of society at large.36 The influence of society, actual practices, and legal traditions is, however, more prevalent in the works of others. Following Watson, David Bederman claims that Roman jurists acknowledged custom but only as a source of centralist law rather than as a competing system of practices.37 Aldo Schiavone describes the evolution of Roman law as a specialization of the Roman jurists, and examines their attempt to systematize the law and detach it from other cultural institutions.38 Clifford Ando places greater emphasis on the fact that Roman law accepted local jurisprudence and custom, although over time it was standardized and unified.39 The role of society and its internal legal traditions is most dominant in recent works by Humfress and others, who accept the importance of centralist law and legislation for late antique Roman emperors, but emphasize the importance of other legal traditions, expressed mainly in customs.
These scholars call on us to “think in terms of law as a set of social practices rather than primarily the law of the emperor,”40 to study law from the ground-level up, without privileging formal imperial law over customary law,41 to think of Roman jurists as “conversing” with their surroundings,42 or even to see law as “a site of political debate, not between ruler and ruled, but between several competing groups.”43
Although gaining more significance in current scholarship, the importance of the various legal traditions and practices forming Roman law does not change the basic definition of Roman law as a centralist, or formalist-positivist, legal system. Roman law is still described as a unified legal system—an expression of imperial rule—that accepts local customs only to a certain, arguable, extent.44 Furthermore, the Romans did not seek to impose their own legal system (that is, private law) throughout the Empire, but rather to allow access to it, thus enabling the survival of various legal traditions.45 Roman law can therefore still be studied from a legal-anthropological approach, as a complementary corrective to the legal-centralist perspective rather than as a replacement thereof.46
Greek law, however, portrays a much more diverse picture. Archaic Greek law of the poleis, the city-states, has been described as non-unified and non-centralized, to the extent that scholars have even questioned whether the term “Greek laws” is more accurate than “Greek law.”47 Nevertheless, in recent years more and more studies are describing the rule of the law, rather than the rule of the tyrant, in Archaic Greece, and seek to convey the universality, consistency, and unity of this legal system.48 Later Greek papyri from Ptolemaic and Roman Egypt expose diverse legal systems,49 since the legal traditions arising from them differ both from the law of the ruling Roman Empire and from local Egyptian legal traditions, leading to the conclusion that Hellenistic and Egyptian legal traditions flourished alongside one another.50
Likewise, it has been claimed that Greek law does not only refer to official law but also to custom and practice.51 In fact, starting from the end of the nineteenth century, with the discovery of the Greek papyri, the difference between the official Roman legal system and the Greek and Egyptian norm has become evident. Studies such as those of Ludwig Mitteis,52 Ernst Levy,53 Raphael Taubenschlag,54 Hans Wolff,55 and, more recently, Uri Yiftach,56 have shown that Egyptian papyri, just like western legal sources,57 reflect legal traditions that differ from imperial law. These scholars ask whether the legal concepts described in these papyri can be regarded as an independent legal system operating in the Roman Empire and interacting with Roman law in various ways (even prior to 212 C.E.), yet not always correlating with it,58 or whether these legal concepts constituted a simplified, corrupt, version of Roman law.59 In fact, these papyri also call into question the significance of the Antonine Constitution of 212 C.E. as a turning point in the spread of Roman law in the Empire.
Even before the Constitution, which declared most inhabitants of the Empire to be Roman citizens, Roman civil law was used in the provinces. Later, it was accessible there, but was not necessarily enforced.60 The papyri, therefore, serve not only as a means of viewing the diversity of Greek law, independent of Roman law, but also as a means of studying the spread of a unified Roman legal system and the survival of other legal traditions under Roman rule.
The diversity of Greek law (that is, the fact that, as portrayed in the papyri, it did not only subsist under the Roman regime, but was in itself also composed of different, and sometimes contradictory, legal traditions) led to its being labeled “pluralistic” from the beginning of the twentieth century.61 Classifying Greek law as pluralistic, and portraying Roman law as influenced by custom and practice, constitute one of the bases for a change in the study of Roman law and Roman society.
In the 1960s and 1970s, with the general rise of social history, the study of Roman history also changed, with intensifying scholarly interest in Roman society and social processes.62 This change had an impact not only on the study of Roman society but also on the study of Roman law, which shifted from a dogmatic and historical perspective on an official, authoritative legal system to a social and historical study of Roman law in relation to society and practice. As John Cairns and Paul du Plessis argued,63 the beginning of this shift was initiated in 1967 in John Crook's book, which set out to study “Roman law in its social context.”64 This trend continued in the works of Susan Treggiari, Richard Saller, and Jill Harries, who used legal sources, or legal questions and topics alongside non-legal sources, in their study of Roman and Greek societies65 and in their research into how law functions within society.66
Other scholars changed the direction of this focal point and, from studying society using its legal context, moved toward studying the law using its social context. David Johnston, in 1999, set out “to understand the law in light of the society,”67 while Thomas McGinn, in his study of prostitution, suggested a multidirectional pattern of development of law and society rather than a linear description of law changing in one direction due to social changes.68
The studies focusing on Roman law and society and on Greek legal traditions not only change the focus and breadth of the historical study of law but also challenge its very concept. The most significant term used to describe Greek legal traditions in these studies is “pluralism.” However, the use of this term is frequently flexible, varying from referring to various—sometimes competing—legal traditions subsisting under imperial rule, to describing different levels of practices and custom as equal to enforceable official law. Nevertheless, in all cases the definition of law differs from the centralist, or formalist-positivist, definition of law. Law is non-systemized, non-unified, and localized; it refers to several, sometimes contradicting (yet coexisting) legal traditions from different communities and different periods, or to different levels of authorities and sources of law, thereby creating various levels of commitment and enforcement.
Questioning the common centralist, or formalist-positivist, concept of law is not unique to the study of ancient legal history or even legal history in general; rather, it is part of the debate on the concept of law in modern legal theory. Starting at the beginning of the twentieth century, the concept of “living law,” which is not necessarily state law and the discussion on the relation between law and custom, emerges with the work of Eugen Ehrlich, a historian of Roman law and one of the founders of sociology of law.69 These were the basis for significant developments in sociology of law and legal theory.
Beginning in the 1970s, with the rise of legal pluralism, claims that various legal systems may coexist, or that law is not necessarily linked to imperial power but to authorities of various degrees—creating differing levels of commitment—were significantly developed in studies in legal sociology and anthropology. Scholars criticized the centralist concept of law and challenged the assumption that law and legal authority are exclusively tied to the state, pointing to other legal systems coexisting with state law,70 which may be disconnected from official authority and power.71 In so doing, they contradicted the main proponents of legal centralism—often identified with legal positivists—such as John Austin, who claimed that law is the command of the sovereign, and H. L. A. Hart and Joseph Raz, who related legal authority to the collective recognition of law.72
John Griffiths, in one of the founding articles on legal pluralism, reviewed studies of social scientists, discussing other normative systems and undermining the concept of law as a centralist system. Griffiths redefined the concept of law and expanded it to refer to “self-regulation of a ‘semi-autonomous social field.’”73 This definition, which draws on that of Sally Moore,74 marked the start of legal pluralism and its new definition of law, a definition that includes various versions of non-state law, indigenous law,75 religious law, and customs and social norms.76 Furthermore, the expansion of the definition of law to other social regulations and norms led to the development of New Legal Pluralism—that is, studies on sub-cultures within western society focusing on socio-legal norms and practices, rather than studies limited to post-colonial cultures focusing on coexisting legal systems.77 It also led to the diffusion of this concept into international law as an example of non-state law.78
The main analytic criticism leveled at legal pluralism, already found in the writings of Sally Merry, Sally Moore, and others, refers to the borders of the expanded definition of law: if law is not only centralist, is not only state law, what is the difference between law and other social orders that are not law? Where should one draw the new line? In other words: when does normative diversity become legal pluralism? Simon Roberts warned that “some of these expansive moves to represent law as present beyond the state, even as having nothing to do with governing, leave us with a diminishing sense of what law is”;79 and Brian Tamanaha claimed that, while legal pluralists join forces in their rejection of the centralist concept of law, and say what law is not, they do not give a unified, clear definition of what law is.80 As a result, Tamanaha does not define what law is, but rather accepts the claim that law is whatever people refer to as law. By not tagging all law as the same phenomenon, he allows for a more nuanced comparative and empirical approach to studying co-existing legal systems.81 Tamanaha accepts the claim that “custom” is not “law.” That, however, does not mean there is no reason to discuss state law in comparison to other social regulations and address their relations, influences, or competitive co-existence.82
Griffiths, almost twenty years after his initial article, accepted this criticism,83 and claimed that legal pluralism should actually refer to normative pluralism, or pluralism of social control, in which centralist law is just one channel of social control, among others. He also concluded that custom is, in itself, centralist and is a source of positivist law. By that, instead of undermining the centralist concept of law, since it does not include custom, he strengthens it by bringing custom into the centralist legal system.84
Criticism of the centralist concept of law, however, is not only based on sociology and anthropology85 but is also part of the theoretical debate over law. One of the most notable essays on a concept of law unrelated to state and power is that of Robert Cover. In his renowned article Nomos and Narrative,86 Cover followed Mark DeWolfe Howe and others87 in claiming that not only states but also communities possess certain sovereignty. According to Cover, law and its authority are rooted in meaning and interpretation rather than in enforcement. Law is a cultural phenomenon created by normative communities and is dependent on societal commitment to this communal effort rather than on state power and enforcement. As an example of non-state law, Cover chose halakha, the Jewish legal system, using an example from halakhic sources from the sixteenth century. Choosing halakha, however, not only reflects Cover's concept of halakha as a non-state legal system, it also correlates with various studies on halakha from different periods, which describe it in wider and less strict terms than those used for the positivist description of legal systems.88
MISHPAT IVRI AND HALAKHA
Jewish law in the twentieth century, like Roman law, is studied using four different approaches: dogmatic, historical, philosophical, and comparative. Nevertheless, the emphasis of these perspectives varies in the study of Talmud and halakha and in the study of Mishpat Ivri (literally, Hebrew law). The study of Talmud and halakha, which is usually conducted in humanities faculties, relies mainly on historical-philological and philosophical methods (focusing on the halakhic sources and their textual development, on the changes in halakha, and on contextualizing halakha in relation to contemporaneous legal systems). By contrast, the study of Mishpat Ivri, while using these methods, places more emphasis on the dogmatic study of Jewish law, limits itself to fields included in western legal jurisprudence, such as civil law, and utilizes comparisons to modern western legal theory in its research.
The study of Mishpat Ivri was founded by the Mishpat Ivri movement, which sought to describe Jewish law as a comprehensive legal system,89 mainly as part of the Zionist attempt to prepare and formulate Jewish law for use in the modern Jewish state. Menachem Elon, for example, the main promoter of Mishpat Ivri, advocated for a historic and dogmatic study of Jewish law.90 Other scholars, such as Eliav Shochetman, went further and claimed that Mishpat Ivri should be studied using dogmatic and ahistorical methods,91 while Hanina Ben-Menahem called for jurisprudential analysis rather than historical reconstruction of Jewish law.92
Nevertheless, the dogmatic study of Jewish law does not imply that Jewish law matches the positivist concept of law. For example, Bernard Jackson compared the modern positivist paradigms to the halakhic system93 and claimed that, unlike the positivist concept of law, halakha is non-centralized and non-unified. It gives significant room to morality, and the authority of its jurists draws from the respect felt toward them rather than from their official power.94
These aspects of halakha are relevant not only to the research on the medieval and modern halakhic world but also to the study of Late Antiquity. In fact, tracing the influence of Cover's Nomos and Narrative on modern scholarship of Late Antiquity can be used as a test case, and enable a better understanding of the paradigms guiding the study of halakha and law in current scholarship. Indeed, Nomos and Narrative played a significant role in modern legal studies, and in introducing Jewish law into the American legal system.95 Likewise, its continued relevance to modern Israeli scholarship is clear from the fact that it was translated recently to Hebrew in a series of Great Books, despite nearly thirty years having passed since its initial publication.96
For our discussion, however, it is important to note that Nomos and Narrative inspired a substantial number of studies on the pluralistic aspect of the late antique Jewish Nomos (that is, the halakha)97 or on its Narrative (that is, the aggada) and the relationship between Nomos and Narrative (that is, between halakha and aggada).98 Unfortunately, this scholarly work has hardly had the same impact on the study of Roman law or early Islamic law.99 Similarly, the pluralistic aspect of halakha stands at the core of several recent studies on late antique Judaism.100 Richard Hidary, following Hanina Ben-Menahem, distinguished between the tolerance for legal pluralism in the Babylonian Talmud and the insistence on uniformity of practice in the Palestinian Talmud,101 and has shown the acceptance of the local aspect of halakha in Babylon, contrary to Palestine.102
Following his earlier assertion regarding the polysemy in rabbinic literature,103 Steven Fraade recently claimed that the Tannaitic legal literature (of the first and second centuries) and Amoraic legal literature (of the third through sixth centuries) is inherently multi-vocal.104 Tangential topics, such as the claim of one truth in halakha, were also discussed in studies by Ben-Menahem and later Christine Hayes. While Ben-Menahem105 and others argued that the rabbis accepted different claims as true, Hayes argued that the rabbis preferred equity over justice106 and did not attribute values of truth to the halakha.107 Thus, her research adds to several studies on equity,108 the moral values in halakha,109 legal fictions,110 studies on the concept of controversy and authority,111 and studies on the correlation between halakhic thought and natural law.112
Questions regarding the difference between the halakha as portrayed in rabbinic literature and halakha as practiced, and, consequently, the relations between the rabbinic movement and the Judean communities, are also addressed in the modern study of late antique halakha. Such questions arise from the material evidence, which does not always suit rabbinic literature, as Yonatan Adler recently surveyed,113 and from the practices and regulations attested in the Dead Sea Scrolls and their relation to rabbinic halakha. The Qumranic regulations also lead to theoretical discussions regarding the suitability of the term halakha to describe these Qumranic regulations, as we will see below.
Halakha, therefore, is significant to the study of late antique legal traditions because of the paradigm it offers legal historians: unlike the study of Roman law, modern scholarship of halakha acknowledges its pluralistic aspect and indeed focuses on it, thus portraying a different model of late antique law.
HALAKHA, THE NEW TESTAMENT AND QUMRAN
Not only does halakha offer a different model for the conceptualization of late antique law it also plays a unique role in the study of late antique Christian legal traditions, especially in the study of the foundations of the early Christian legal tradition as reflected in the New Testament. Legal traditions preserved in the New Testament and Apostolic Letters were studied as part of a wider effort to position these compositions in their social and historical context. Unlike research on the theology of the New Testament, which refers to both the Greco-Roman world and the Jewish world, research focusing on law led scholars to discuss the New Testament almost exclusively in its Jewish context, be it sectarian or rabbinic.114
Starting from the 1970s,115 with the groundbreaking works of J. Duncan Derrett,116 Ed Sanders,117 and others, the law in the New Testament was discussed in the light of halakha, that is, in the light of legal traditions attested in sources ranging from Qumran, the Dead Sea Scrolls, Apocryphal literature, and rabbinic literature, and following the halakhic definition of law, which includes religious law and custom in addition to civil law. Such studies tend to discuss either specific halakhic issues, such as the Sabbath,118 circumcision, purity,119 marriage law,120 and dietary laws, or examine the concept of law focusing on Jesus121 or on Paul,122 and discuss their understanding of the law, their possible antinomic claims, and the Jewish-Christian polemic. These studies seek to determine the legal system underlying the early Christian sources by way of identifying the earliest Christian communities and their relationship to their surroundings.
The main questions asked are: Whose law is reflected here? Is it the Roman legal system, since the early Christians were part of the Roman Empire? Is it Jewish Law, since early Christian communities were related to Jewish communities in various forms and degrees? If so, what kind of Jews? Are they sectarian,123 rabbinic, or Hellenistic?124 The study of law in the New Testament is also used as a tool for dating this literature,125 discussing the relations between the gospels,126 or discussing the parting of the Jewish and Christian communities.127
Nevertheless, a small number of early studies focus on law in the New Testament in its Greco-Roman context, discussing mainly status, citizenship, and capital punishment, especially in the context of Jesus’ trial.128 In fact, even when Alan Watson, a legal historian specializing in Roman law, discussed these topics, he emphasized Jesus’ Jewish background rather than the Greco-Roman context.129 Law, therefore, when studied in relation to the New Testament, whether as a means of contextualizing or of dating the New Testament, is usually defined as halakha, or even as halakha in its Qumranic version, rather than western centralist or formalist-positivist law.
A few studies, however, focus on halakha in late antique Christian sources beyond the New Testament. While some center on Jewish ritual or religious observance attested in early Christian literature130 (as do the studies of the halakha in the New Testament), a few new works focus on the “Church Orders,” claiming that they do not only preserve specific halakhot (pl. of halakha), but actually relate to the mere concept of law as rabbinic halakha. A few studies examining the Didache,131 the Didascalia,132 and the Apostolic Constitutions133 utilize these texts not only to discuss the Jewish-Christian polemic on law or specific laws, but also to show that aggadic and halakhic discourse and ways of thinking are actually embedded in these texts, and that their recognition enables a better understanding of them.
The focus on law and halakha in these studies is a result of the importance of halakha in Judaism. As Ephraim Elimelech Urbach noted in the opening to his monumental book: “Nothing has made its influence more profoundly felt on the course of the history of the Jewish people, shaping its way of life and giving it form and substance, than the Halakha.”134 Had halakha not been a key factor in the definition of Judaism, whether as a new development of the rabbis living under the Roman Empire or earlier,135 it would not have been so in the study of the New Testament and the attempt at identifying its social and cultural background.136 Nevertheless, the rise in the study of the legal aspect of the New Testament, rather than its theological dimension, did not occur in a void; it is linked to a similar development in the study of the legal traditions of Qumran literature.
As Lawrence Schiffman and others have claimed, the study of halakha in Qumranic literature started only after 1967, when the scrolls reached the hands of Jewish scholars. With the publication of the Temple Scroll in 1977 and the subsequent legal texts, the study of Qumranic halakha emerged, mainly conducted by Jewish scholars trained in traditional or academic Talmudic studies.137 These scholars, acquainted with the concept of halakha rather than law in its centralist and formalist-positivist form, included in halakha various levels of customs, practices, rituals, and norms, and did not tie it to the power of the state and its enforcement, nor limit its fields of research to those of western jurisprudence. They searched for halakha in Qumran and drew their colleagues to the study of legal traditions in Qumran and the New Testament.138
As with the study of Talmudic halakha, the study of Qumranic halakha refers not only to issues such as the judicial system139 and penal law140 or private law (for example, marriage and divorce)141 but also to ritual law, including purity,142 the calendar, and the Sabbath and holidays;143 it also relates to questions regarding social setting and practice, rather than the official norms in Qumran.144 Moreover, the study of halakha in Qumran also stimulated lengthy discussions on the concept of Qumranic law, starting from Yaakov Sussmann's groundbreaking study, which portrayed Qumranic halakha as more stringent than rabbinic halakha.145 Daniel Schwartz's innovative article subsequently characterized sectarian halakha as realist (that is, as a system that defines the Commandments as representing the real world), whereas Talmudic halakha is nominalist (defining the Commandments as the will and sovereignty of the commanding God).146 In response, Jeffrey Rubenstein suggested that the difference between Qumranic and Talmudic halakha is not a result of a different concept of law, but rather a result of the time gap between the two. This time gap allowed Talmudic halakha to further develop, thus resulting in a more nominalistic approach, but it is not inherently more nominalistic.147 In any case, questions of realism in Qumranic halakha,148 the New Testament,149 or rabbinic halakha150 continue to be debated, and new ways to explain this difference suggested.
Thus, while it is not clear that Qumranic halakha is realistic overall, it is evident that, at least in some cases, it follows realistic trends. Similarly, while there are marked differences between Talmudic and Qumranic halakha, it is also unquestionable that Qumranic halakha, just like its Talmudic counterpart, does not correlate with the centralist and formalist-positivist definition of law. Unlike this definition, Qumranic halakha embraces social norms alongside institutionalized norms; it is local, refers to ritual practices and customs, and draws its authority from the understanding of nature, scripture, or charisma rather than from enforcement and sovereign power.
Indeed, the search for halakha in the Dead Sea Scrolls was justly criticized, since the term halakha does not even appear therein.151 Furthermore, the phenomenon known as halakha does not suit the practices, norms, or regulatory writings of the Scrolls in its level of detail and systematization. While, in comparison with modern legal systems, rabbinic halakha is non-systemized and localized, or possibly trans-localized (and hence not “law”), in comparison with Qumranic legal traditions it is actually Qumran that is even less systematic, and hence not even halakha, and definitely not “law.”152 Using the term halakha with regard to sectarian practices therefore indicates continuity and identity, which cannot be presumed. Nevertheless, the use of this term continues.153 Moreover, in the context of this paper, and for want of a better label, the term halakha seems to be more suitable than the term “law”: Qumranic practices, norms, and regulations are closer to Talmudic halakha, in both scope and concept, than to the modern (centralist) definition of law.
TOWARD A NEW MODEL OF RESEARCH
As a paradigm, the centralist, or formalist-positivist, cultural concept of law fails to adequately describe the various legal systems in the late antique Greco-Roman world. It does not suit Greek legal traditions, Talmudic and Qumranic halakha, or the legal traditions of the New Testament, and only partially suits Roman law. Unlike the centralist, or formalist-positivist, paradigm, the move to disentangle the concept of law from uniformity, imperial power, and enforcements, and adding to it custom, practice, and norms, seems better suited to comply with the study of law in Late Antiquity. If this is the case, can this disentanglement and expansion also open a gateway to studying late antique Christian legal traditions? In other words, is the key to studying Christian legal traditions in their own right, rather than exclusively in relation to Roman law, rooted in shifting from a top-down model to a bottom-up model, that is, from a model that focuses on imperial legislations and formal law, to one that focuses on social practices, regulations, customs, and norms? Might this make room for the study of the relationship between law and society, observance and norm, taking into account that Christian legal traditions can be described as “living law,” rather than “non-law?”154
For a new model of research, a new concept of law, however, is not enough. New texts that serve to reveal practices and norms rather than official legislations are also required. Such texts are the Christian non-legal texts, namely the theological treatises, hymns, biblical commentaries, and histories, which preserve evidence of legal thought and practice. The study of non-legal texts in search of evidence of legal thought and practice is frequent in the study of Roman law, especially by scholars focusing on Roman law and society.155 Furthermore, Christian non-legal texts, mainly of authoritative writers such as Augustine, Ambrose, Jerome, and Origen, were cited during the Middle Ages as sources of Canon law.156 In modern research, scholars of late antique Roman law used Christian non-legal sources as evidence of Roman legal traditions, and saw them as indications of Christian practice of Roman law, or influence on Roman law.157 Thus, while this may demonstrate that non-legal texts help preserve legal traditions, it does not yet prove that non-legal texts preserve unique legal traditions that are different from those of the Empire, nor does it point to a custom, practice, or norm unrepresented in formal legal literature.
Caroline Humfress recently surveyed the evidence of law and practice in non-legal Christian texts and their use in the study of Roman law.158 A close look at the non-legal texts she surveys, however, shows that they are mainly Christian texts written in Latin. While this indicates that the Latin Christian writers tended to use Roman law for their own theological and exegetical purposes, it does not imply that they developed an internal independent and unique legal tradition. Similar conclusions arise from surveys of the legal traditions mentioned by Tertullian,159 Cyprian,160 and Augustine of Hippo.161 They all attest to Roman law, hence their study does not lead to the conclusion that Christians may have developed, or observed, a unique legal tradition.162
If Humfress’ description is correct, can we conclude that the attempt to study law from non-legal literature is not expected to reveal a unique and independent legal tradition, but rather reflections of Roman law and its practice? Or do such studies only portray the state of the practices and norms of Christians writing in Latin in the western Roman Empire, and hold no relevance for the eastern Roman Empire? What we have seen so far seems to indicate that the Latin west is not identical to the Greek and Semitic east, and the picture portrayed regarding the western Roman Empire and its legal culture does not necessarily suit the eastern Roman Empire and its legal culture. As already noted, while the varying paradigms of legal pluralism suit Greek law and halakha, its suitability to Roman law is partial and debatable, and even those who accept the concept of legal pluralism in the West claim that, over time, Roman law incorporated the different legal traditions and customs into a unified legal system. For example, when Clifford Ando discusses Nomos and Narrative, he actually asserts that, unlike halakha, Robert Cover's paradigm does not suit Roman law.163
The assumption that the centralist, or formalist-positivist, concept of law does not suit the Eastern Roman Empire, and the assumption that Christian writings of the Eastern Roman Empire may preserve a unique and independent legal tradition that does not correlate with Roman law (at least not exclusively) are strengthened when compared to other phenomena in the late antique Greek and Semitic eastern Roman Empire. First and foremost, the sparse information that we do have about the evolution of a late antique internal Christian legal system, in the form of the so-called “Church Orders,” Councils, and Apostolic Letters, originated in larger quantities from the Greek-speaking east.164 In fact, in recent years, recognition of their importance as evidence of the existence of a body of early Christian legal tradition, and specifically the acknowledgement of the influence of eastern sources in the formation of Christian law, are growing.165 These “Church Orders” are not only important for understanding the formation of eastern Christian law; they themselves are better understood as halakhic exegetical text rather than early texts of Canon law. As Joseph Mueller has analyzed, their editing resembles that of rabbinic texts in its mixture of halakha and aggada, and they are therefore better studied through a halakhic lens rather than through paradigms suitable for texts of Canon law.166
Second, the difference between the East and the West with regard to Christian legal traditions correlates with studies on local cultures and legal traditions that continued in the Roman Near East.167 Studies on Jewish legal traditions clearly differentiate between their development in the Eastern Roman Empire and Sasanian Empire, and the lack of such developments in the Latin west.168 Similarly, while comparative studies of Jewish and Roman law have been widespread in the works of Boaz Cohen,169 David Daube,170 and others,171 Daube's students, including Reuven Yaron172 and Bernard Jackson, like others, have claimed that Roman law has no direct influence on Jewish law,173 and call for Jewish law to be studied comparatively alongside Hellenistic law, that is, legal traditions from the Greek east.174 In fact, only recently, Kimberley Czajkowski used the Babatha archive, papyri found in the Judean desert, written in Greek, Hebrew, and Aramaic, as a test case for her claim regarding the fluid legal culture and multi-legal communities in the provinces.175
Third, the same picture arises from the study of Syriac Christianity, which preserves Jewish and other local traditions to a larger extent than Greek- and Latin-speaking Christian communities.176 In the same way, new studies on later Byzantine law show its uniqueness and difference from Roman law in its western form.177 The difference between Christian legal traditions in the East and the West, and their affinity to Roman law, can be clearly exemplified by comparing the two late antique legal treatises, the Collatio legum mosaicarum et romanarum, written by either a Christian or a Jew in the Latin west, and the Syro-Roman Lawbook, written by a Christian in the Greek and Syrian east.178 While both are based on Roman civil law, the former cites Roman law without significant changes, whereas the latter also cites Roman law, but changes it, adds to it, and is occasionaly influenced by other oriental legal traditions.
THE VALUE OF NON-LEGAL LITERATURE: THE CASE OF EPHREM
The three principles discussed here—namely the study of early Christian legal traditions as independent living legal traditions disentangled from imperial law, power, and enforcement; the use of non-legal literature as a source of “living law,” and the focus on the East as a place where the legal traditions not only differ from those of Roman law, but the legal concepts are closer to halakhic legal concepts—are well demonstrated in four of my recent studies on the writings of Ephrem the Syrian. In these studies, I examine the legal traditions Ephrem preserved in his writings, leading to conclusions that were not possible in previous studies. Ephrem, a fourth-century Syrian Christian living in Nisibis and Edessa, is known not only for implementing Jewish traditions in his writings but also for his self-identification with post-Nicene Greco-Roman Christianity and his fierce polemic with the Jews. However, the Jewish traditions discussed so far in scholarship are mainly aggadic as opposed to halakhic. They focus on theology and biblical commentary rather than on law, as Ephrem did not write legal literature.
The first study points to the fact that Ephrem's legal terminology, as used in his non-legal literature, reflects legal concepts different from those of Roman law as well as those used by Greek and Latin Christian writers, but close to Jewish legal terminology and concepts.179 A survey of the terms referring to betrothal (ܡܟܪ), adultery and fornication (ܙܢܝ – ܓܘܪ), marriage (ܫܘܬܦ – ܙܘܓ), and divorce (ܫܒܩ – ܕܠܠ – ܫܪܝ) shows that Ephrem's use of these terms, even when not discussing their legal meaning, is consistent. It may, therefore, be used to deduce Ephrem's understanding of these legal terms. His understanding, however, does not correlate with the legal understanding common in contemporaneous Christian literature in Greek and Latin, nor in Roman legal literature, but rather correlates with rabbinic legal tradition, and especially with Palestinian rabbinic legal traditions. For example, examining the semantic field of the root ܡܟܪ – (to betroth) shows that Ephrem treats betrothal as a bond as binding as that of marriage: he describes infidelity during betrothal as adultery rather than fornication, and the breaking of a betrothal as divorce rather than annulment. The legal tradition reflected in Ephrem's writing correlates, therefore, with rabbinic halakha, which associated betrothal with the same level of commitment as marriage and does not correlate with Roman law and the legal tradition held by Greek and Latin Christian writers, which saw betrothal as a mere promise for future marriage.
In fact, this exact same phenomenon is also apparent in the second case, which focuses on Ephrem's direct pronouncements on betrothal. In a series of statements in different forms regarding the virginity of Mary and her betrothal to Joseph, Ephrem, following contemporaneous Greek and Latin Christian writers, claims that “A man's betrothed is his wife.” This is stated to claim that Mary, though described occasionally as married to Joseph, was actually betrothed to him, which indicates that she was a virgin when conceiving Jesus. This statement, however, is not unique to Ephrem. It originated in a Greek and Latin context, where betrothal is, in fact, very different from marriage. Ephrem, whose legal terminology reflects an inherent affinity between betrothal and marriage, mistranslates this stance when adapting it into his biblical commentary in a way that reveals not only the difference between his legal concepts and those of the Greek and Latin Christian writers but also the gap between the official Christian claim regarding the status of betrothal, which Ephrem adopts, and that subsisting in his terminology.180
Furthermore, in the third case the study of Ephrem's non-legal literature uncovers not only different legal traditions and practices, but entirely different legal thought. Analysis of Ephrem's approach to the rape of virgins, for example, as reflected in his biblical commentary and hymns, shows that he viewed sexual intercourse, regardless of intent or consent, as creating an automatic marital bond that could not be broken. Even subsequent sexual relations with another man could not break the marital bond that was initially cemented by (in this case forced) sexual intercourse.
This conclusion can be deduced from reviewing Ephrem's commentary on such rape cases, in which the victim is not permitted to go on to have a relationship with another man, and comparing them to cases of rape among married women, which have no implications for the legal status of these wives. This feature, together with acknowledgement only of divorce of betrothed women, and no acceptance of divorce for married women, indicates that, according to Ephrem, sexual relations created an automatic and unbreakable marital bond. By that, his position stands in sharp contrast not only to that of Roman law and contemporaneous Christians but also to that of contemporaneous rabbinic legal thought, and correlates only with legal practices and naturalistic approaches found in the early sectarian Palestinian literature of the Second Temple period. These sects, like Ephrem, in some cases gave legal power to the physical act rather than to legislation and authoritative power.181
While these three cases highlight the gap between Ephrem's legal tradition and that of Greek and Latin Christian writers, such a gap is not always to be found. A study of two Roman procedures from the betrothal ceremony, attested in the Syro-Roman Lawbook, and a survey of evidence of these procedures in non-legal Christian sources prior to the Syro-Roman Lawbook, shows that, contrary to previous claims, the legal practices discussed in the Syro-Roman Lawbook are not unique to the Roman west, but rather are known in the East. This leads to the conclusion that the penetration of Roman law into the Christian communities of the Eastern Roman Empire, namely the Greek- and Syriac-speaking communities, was earlier and deeper than previously thought.
In turn, this raises questions regarding the origin of the Syro-Roman Lawbook and its relation to the society in which it was composed and translated. In light of these questions, it ceases to be an enforced, external, legal system, and becomes, at least in some cases, a reflection of well-known and fully integrated laws.182
The first three case studies are based on a legalistic reading of non-legal literature and therefore on the assumption that, while this is not part of official or authoritative legal literature, it may nevertheless preserve legal tradition that subsisted under Roman rule, and differs from that known from other Christians. Furthermore, the fact that these legal traditions are found in the writings of Ephrem, who was neither a bishop nor any kind of ruler, and did not have any official power, strengthens the conclusion that the study of legal thought and practice does not have to be tied to writings of official authorities or related to ruling positions.
Moreover, the first three case studies highlight not only the importance of using non-legal sources to uncover unique legal traditions, but actually point to the specific role of halakha in the study of early Christian legal traditions. The first two cases draw out the Jewish legal traditions that underlie Ephrem's legal terminology. In fact, the second example goes one step further and demonstrates not only the difference between Ephrem's legal concepts and those of contemporaneous Greek and Latin Christian writers, but rather the difference between his own official theological stance, which reflects his identification and involvement with post-Nicene Christianity, and the legal concepts from which he draws in developing his thought.
The third case goes yet further, by showing that disentangling the study of law from legal literature is important both for the study of legal traditions and practices and for the study of legal thought. Ephrem's concept of law, unlike the positivist concept of law, tends toward naturalism—that is, he prefers the physical act (in this case, that of sexual intercourse) over legislations and ruling authority (in this case, the formal marriage ceremony). The fourth case, as with the previous cases, is based on evidence in non-legal literature; but, unlike the others, it does not show Ephrem's unique legal traditions, nor the role of the halakha in his writings. Nevertheless, the use of evidence drawn from non-legal literature, and raising the possibility that the practice might not be identical to that reflected in the legal sources, is what enabled the discussion on the relationship between legal literature and its surrounding society.
These four studies show that reading non-legal literature of the Eastern Roman Empire from a legalistic perspective in an attempt to find evidence of legal thought and practice can lead to fruitful results that would simply not be possible otherwise. This is despite the fact that they do not form part of the official legal literature, do not have normative authority, and do not represent legal traditions related to imperial law, and that the legal traditions found in them may be unique to specific groups. The results of these studies point, on the one hand, to the importance of halakha, both in practices and in thought, and, on the other hand, to the relationship between law and society in cases related to Roman law. That said, analysis of other sources in search of the legal tradition of early Christianity may bring up entirely different results.
As Clifford Ando has only recently stated, “These are heady days for ancient legal history. In Greek, Roman, Chinese, Hindu, Islamic and Jewish Law, new theoretical approaches, newly published primary materials, and new scholarly resources are transforming fields of inquiry.”183 Isn't it time for early Christianity to join this exciting party?
The tools required for the study of early Christian legal traditions, as well as the conceptual change required for such research, are readily available and accessible. Three scholarly trends molded in the 1970s and 80s—namely, the rise of social history, the rise of legal pluralism, and the study of halakha in the New Testament—have evolved to such an extent that they are ready to consolidate in the study of early Christian legal traditions in the Eastern Roman Empire. Furthermore, the field of Early Christian Studies, unlike its older sister Church History, which focused on the institutional history of the Church, has been heavily influenced by social history and social theory since the 1970s,184 and the questions surrounding the extent to which Christians were part of Greco-Roman society are widely discussed.185
Other paradigms required for a study of Christian legal traditions as an independent, non-positivist, and non-centralist legal tradition are also available. Not only did legal pluralism penetrate various fields of legal history, but the rise of the paradigm of “Late Antiquity”186 as a period significant in and of itself calls for a study focusing on Christian legal traditions in the post-classical traditions as legal traditions in their own right rather than contaminations of Roman law.
I believe it is time to implement these methods not only in the study of well-established legal traditions, such as Roman law and halakha, or in relation to them, and not only in the Western Roman Empire, which does not show significant evidence of unique Christian practice, but also in the Eastern Roman Empire. This approach would help in the process of uncovering a new legal tradition emerging in late antiquity from its embryonic stage—the Eastern early Christian legal tradition.
Two cautions should, however, be stated. First, the study of Christian legal theory supports the portrayal of Christian law as non-positivist and non-centralist, since studies focusing on direct early Christian stances and treatises relating to legal theory tie the Christian concept of law to natural law theory, as do the studies on Ephrem.187 Christians also acknowledged the role of custom and addressed the question of its relation to law.188 There is good reason, therefore, to believe that late antique Christian legal traditions will present characteristics similar to those of natural law theories, just as with pre-Christian Qumranic halakha, late antique theoretical claims, or medieval Christian legal theory. However, this is far from assured; further investigation and assessment are required.
Second, just as Talmudic halakha is not necessarily a religious legal system in all aspects,189 late antique Christian legal traditions are not necessarily religious legal traditions in all aspects. And just as Qumranic halakha is not identical to Talmudic halakha in all conceptual aspects, late antique Christian legal traditions are not necessarily identical to the halakhic concept. The study of Christian legal traditions should therefore neither be the study of Christian “halakha” nor of Christian natural law,190 and comparisons to Roman law should not be automatically replaced with comparisons to Talmudic sources. Rather, the study of early Christian legal traditions in the Eastern Roman Empire should be open to the study of a legal tradition that, at this stage, is mainly defined in a negative way.
Just as is the case with Greek legal traditions, Sectarian and rabbinic law, Christian legal traditions of the Eastern Roman Empire, a “living law,”191 are not necessarily centralist; they are only possibly non-systemized and non-unified, and are not necessarily tied to imperial law.192
The scholarly developments required for a bottom-up study of late antique Christian legal traditions, both in legal theory and in legal history, have matured. The texts required for such a project lie in non-legal Christian literature, and especially in the Eastern Roman Empire, such as Greek and Syriac. Such research has the potential to radically shape the future study of late antique legal history and of Christianity in the Eastern Roman Empire.